Citation Nr: 0305812
Decision Date: 03/27/03 Archive Date: 04/08/03
DOCKET NO. 02-05 086A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Washington,
DC
THE ISSUE
Whether there was clear and unmistakable error (CUE) in a
June 1976 rating decision, which denied service connection
for neurotic depressive disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. M. Davis, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1962 to August
1964.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from an April 2001 rating decision of the
Washington, DC, Department of Veterans Affairs (VA) Regional
Office (RO). The RO determined that there was no CUE in the
June 1976 rating decision, which denied service connection
for neurotic depressive disorder.
In December 2002, the veteran testified at a personal hearing
before the undersigned Veterans Law Judge. A transcript of
this hearing has been associated with the claims file.
FINDING OF FACT
The June 1976 rating decision, which denied service
connection for neurotic depressive disorder, was supportable
by the evidence then of record, and was consistent with the
applicable law and regulations extant at that time.
CONCLUSION OF LAW
The June 1976 rating decision, which denied service
connection for neurotic depressive disorder, did not contain
CUE. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a)
(2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. VCAA
The Board need not address the VCAA in this case, as the
United States Court of Appeals for Veterans Claims (the
Court) has held that the requirements of the VCAA do not
apply to claims regarding CUE. See Livesay v. Principi, 15
Vet. App. 165, 178-79 (2001).
II. Factual Background
A December 1963 service medical record indicated that the
veteran had a lifelong history of not getting along with
people and that the veteran felt like an outsider and
somewhat unliked. The examiner stated that the veteran had
an emotional problem which required treatment, and entered a
diagnosis of neurotic depressive personality.
An April 1964 service medical record indicated that the
veteran was shy, quiet and rigid. The examiner noted that
the veteran described himself as an introvert, who did not
like to be around people. The examiner also noted that the
veteran stated that he felt "terribly inferior and self-
conscious" and that he did not have a versatile personality.
The veteran also stated that he could not adjust to dealing
with people directly, although at the same time he did not
like to work on a job where he was isolated from people. The
examiner entered an impression of schizoid personality and
stated that this was a long-standing character disorder,
requiring intensive psychotherapy. The examiner recommended
that one of three things be done: (1) give the veteran a job
more suitable to his personality, (2) transfer the veteran to
another Air Force Station where outpatient psychiatric
treatment was available, or (3) separate the veteran from
service administratively on the grounds that he has a
personality difficulty which is incompatible with service
life.
The veteran's June 1964 separation examination indicated that
the veteran had schizoid personality characterized as a long-
standing character disorder existing prior to service.
A June 1975 private outpatient treatment report indicated
that the veteran had complained of nervousness, insomnia, and
an inability to effectively obtain relief from these symptoms
without medication. The examiner entered a diagnosis of
anxiety reaction neurosis, severe.
In a March 1976 VA examination report, the examiner noted
that the veteran was mildly depressed, alert and responsive,
but generally slow in speech and movement. The examiner
stated that the overall severity of the veteran's psychiatric
illness was mild and the degree of social impairment was
mild. The examiner entered a diagnosis of anxiety reaction
with depressive features.
In the June 1976 rating decision, the RO denied service
connection for neurotic depressive disorder, stating the
following:
There is no evidence of psychosis in
service or on current VA examination, and
there is no essential difference between
the findings on VA examination and those
in military service. The rating board
finds that the veteran's condition is
more nearly a personality disorder, a
condition for which service connection
may not be granted.
In the December 2002 hearing before the undersigned Veterans
Law Judge, the veteran stated that he believed that there was
an error in the RO's judgment in the June 1976 rating
decision, and that the RO's interpretation of the diagnosis
of his illness was incorrect. He also stated that the RO
should have addressed the issue of aggravation.
III. Criteria
A final rating decision may be reversed or amended if that
adjudication contains CUE. See 38 U.S.C.A. § 5109A (West
2002); 38 C.F.R. § 3.105(a) (2002). Otherwise, prior
decisions are final. See 38 U.S.C.A. § 7105(c) (West 2002);
38 C.F.R. § 20.1103 (2002).
The Court has stated that "CUE is the kind of error, of fact
or of law, that when called to the attention of later
reviewers compels the conclusion, to which reasonable minds
could not differ, that the result would have been manifestly
different but for the error." See Fugo v. Brown, 6 Vet.
App. 40, 43 (1993). "Even where the premise of error is
accepted, if it is not absolutely clear that a different
result would have ensued, the error complained of cannot be,
ipso facto, clear and unmistakable." Id. at 43-44 (citing
Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc)).
In addition, the Court has established a three-pronged test
to determine whether CUE is present in a prior determination:
(1) either the correct facts, as they were known at the time,
were not before the adjudicator (i.e., more than a simple
disagreement as to how the facts were weighed or evaluated)
or the statutory or regulatory provisions extant at that time
were incorrectly applied; (2) the error must be undebatable
and of the sort which, had it not been made, would have
manifestly changed the outcome at the time it was made, and
(3) a determination that there was CUE must be based on the
record and law that existed at the time of the prior
adjudication in question. See Damrel v. Brown, 6 Vet. App.
242, 245 (1994) (quoting Russell, supra, at 313-14).
IV. Analysis
Based on the evidence of record, the Board finds that the
June 1976 rating decision denying service connection for
neurotic depressive disorder was not clearly and unmistakably
erroneous.
At the time of the June 1976 rating decision, the RO had
before it the veteran's service medical records which
indicated diagnoses of schizoid personality and neurotic
depressive personality. The RO indicated in its decision
that the veteran had been diagnosed with a personality
disorder in service, and service connection could not be
granted for personality disorders as a matter of law. The
applicable regulation at the time stated the following:
Congenital or developmental defects,
refractive error of the eye, personality
disorders and mental deficiency as such
are not diseases or injuries within the
meaning of applicable legislation.
See 38 C.F.R. § 3.303 (1975) (italics added). Thus the RO
was correct to deny service connection on the basis of this
regulation. Further, the Board finds that the correct facts
were before the RO at the time of the decision and the
applicable regulatory provision in effect at the time was
correctly applied. The regulation is clear that personality
disorders are not eligible for service connection.
The veteran has stated that the RO should have considered
aggravation as a basis for granting service connection
because the diagnoses in the service medical records of
schizoid personality and neurotic depressive personality
indicate that these disorders preexisted service. Even if
the RO had found aggravation, the provisions of 38 C.F.R.
§ 3.303 would not have allowed a grant of service connection
for a personality disorder, even on an aggravated basis.
Since the outcome would have been the same, here, a denial,
it is not CUE that the RO did not address aggravation in its
rating decision. See Damrel, 6 Vet. App. at 245 (stating
that the error must be one which, had it not been made, would
have manifestly changed the outcome at the time it was made).
The Board also notes that the veteran was diagnosed with
"anxiety reaction neurosis" in the 1975 private examination
report and "anxiety reaction with depressive features" in
the March 1976 VA examination report. Under the applicable
regulation at the time, anxiety reaction was eligible for
service connection. See 38 C.F.R. § 4.132, Diagnostic Code
9400 ("anxiety reaction") (1975). As noted above, the RO
determined that "there is no essential difference between
the findings on VA examination and those in military service.
The rating board finds that the veteran's condition is more
nearly a personality disorder." Here, the RO gave more
probative value to the inservice diagnoses of a personality
disorder than to the post-service diagnoses of a psychiatric
disorder. This is a weighing of the evidence of record,
which cannot form the basis of CUE. See Damrel, 6 Vet. App.
at 44 (holding that a claim of CUE on the basis that the
previous adjudication had improperly weighed and evaluated
the evidence "can never rise to the stringent definition of
CUE"); see also Russell, 3 Vet. App. at 313.
The Board notes that even if the RO had conceded that the
veteran currently had a psychoneurotic anxiety disorder as
indicated on the 1976 VA examination, the result would not
have been manifestly different. The evidence of record at
that time showed findings of a personality disorder in
service with a chronic psychoneurotic disorder not found
until many years after service. The record did not contain
either a nexus opinion linking the anxiety disorder, or any
neurotic depressive disorder, to service, or evidence of
service incurrence or aggravation of an anxiety or neurotic
depressive disorder, and thus, even though there was a
current diagnosis of an anxiety disorder with depressive
features, the remaining elements of service connection were
not met, and the RO did not err in its conclusion.
For these reasons, the Board has determined that the veteran
has not raised a valid claim for CUE as to the June 1976
rating decision with the denial of service connection for a
neurotic depressive disorder.
ORDER
The June 1976 rating decision denying service connection for
neurotic depressive disorder was not clearly and unmistakably
erroneous, and the appeal is denied.
____________________________________________
HOLLY E. MOEHLMANN
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.